John Armstrong: Beefed-up spy check won't appease rivals

Peters lost no time in pledging his party's support for the PM's pending special legislation which will rectify the GCSB's decade-long breach of the law. Photo / NZ Herald

The latest annual report of the Inspector-General of Intelligence and Security is not going to weigh down the briefcase of your average pie-eating, Penthouse-consuming spook. With the type conveniently double-spaced, the document just manages to make it as far as a fifth page.

Some might find this surprising given 2012 was a rather big year in terms of public exposure for the Government Communications Security Bureau and associated intelligence services.

Then again, the report covers the 12 months up to the end of last June and much of the public action occurred after that date.

There is a very brief and very generalised account of the inspector-general's interaction with the agencies under his purview, with a stress on trust and communication being necessary commodities. That is about as exciting as it gets.

Otherwise, the report deals briefly with complaints about vetting procedures, employment matters and brief mention of the interception warrants issued to the Security Intelligence Service.

It all adds up to not very much. It all adds up to absolutely no bark and likewise no bite from this supposed public watch-dog.

The paucity of meaningful content in the report - and the document varies little by way of length or subject matter from year to year - alone is justification for the overhaul of an institution which seems more at home in the 1950s than 2013.

The silence is puzzling, however. For Paul Neazor, the current inspector-general, has good reason to feel miffed.

In his 2009 report, Neazor made particular reference to section 14 of the GCSB Act - the provision which bans surveillance of New Zealanders by the agency. He wrote that compliance with what statute law allowed was "a thread which runs strongly through the bureau's operation".

We now know that was not the case. Someone was pulling the wool over someone else's eyes. Neazor is not alone in issuing assurances that turned out not to be worth the paper they were written on.

His predecessor, Laurie Greig, was asked by two prime ministers - Jim Bolger and Jenny Shipley - to investigate the adequacy of safeguards to ensure only foreign intelligence was collected by the GCSB.

Greig assured them that it was a "cardinal rule" that the GCSB did not intercept the communications of New Zealanders and the agency was "scrupulous" about complying with the rules.

Whether anyone believed the assurances is a moot point. But last year's revelations that the GCSB has had a longstanding policy of helping the SIS and the police monitor New Zealanders suggests when it came to trust and communication, the traffic was all one way.

The Dotcom scandal and the GCSB's long-running breach of its own law has forced the issue when it comes to oversight of the intelligence agencies. The question of who watches the watchers has reached a watershed.

Winston Peters is about the last person who could be accused of being soft on terrorism. So when someone like him argues for more safeguards to be written into the laws covering the intelligence agencies and that they face greater scrutiny when it comes to issuing surveillance warrants, then there has to be very good reason.

Peters this week declared the time had come to ditch a system that worked as an "ad hoc old boy network with a tap on the shoulder or a chat in a corridor".

Unlike other party leaders, he did not hesitate in pledging his party's support for the Prime Minister's pending special legislation which will rectify the GCSB's decade-long breach of the law.

But Peters has made his support for the measure conditional on John Key agreeing to a major overhaul of the outdated and ineffective oversight mechanisms.

Peters is absolutely right. The external monitoring of the country's intelligence agencies is a complete joke.

The inquiry into the GCSB conducted by Cabinet secretary Rebecca Kitteridge found the agency's practice of helping other agencies monitor New Zealanders to be longstanding. It pre-dated the 2003 law which established the GCSB as a government department. The practice continued after the legislation's passage through Parliament.

The law was of enough concern within the GCSB, however, to warrant seeking legal advice from within the agency. That advice deemed it lawful.

No one at the GCSB deemed it necessary to alert the inspector-general, whose tasks include checking the GCSB's compliance with the law, along with the SIS.

The Prime Minister has responded to all this by detailing steps to strengthen the two external watchdogs - the inspector-general and Parliament's intelligence and security committee.

Peters says Key's plans do not go far enough. Labour and the Greens have continued to call for an independent commission of inquiry across the whole intelligence network.

The suspicion is that Key is rushing things on an ad hoc basis to get the whole brouhaha off the political agenda as soon as possible rather than using the opportunity to introduce a truly rigorous oversight regime.

To take the parliamentary committee first, the changes proposed are little more than cosmetic. This body - chaired by the prime minister and also comprising the Leader of the Opposition and other party leaders - is covered by legislation which largely stipulates what it cannot do rather than what it might do.

The committee sits rarely and then only briefly. It appears to glean little by way of sensitive information. It is forbidden to disclose any it receives. It is difficult to recall anything that it has achieved during its 17-year existence.

In that respect, its designated function of providing oversight of the intelligence services and ensuring their accountability is a mirage. The committee may be doing that. But the public would never know. And beyond a new requirement for the committee to table its reports in Parliament, the public will still never know.

The news is better for the role of inspector-general. Kitteridge's recommendations to turn that office into a local version of its currently more "muscular" and "robust" Australian counterpart appear to have been accepted by the Cabinet.

This should see a beefing up of the office both in terms of staffing and resourcing as it takes a deliberately more "pro-active" role rather than the "reactive" stance adopted by Greig and the soon-to-retire Neazor. Both prided themselves on their parsimony and lack of staff.

Whatever happens, details of the agencies' specific operations will continue to be withheld.

Officials may well talk about striking a balance between secrecy required for effective intelligence operations and meeting legitimate public expectations of transparency on the agencies' part.

The reality, though, is that those running the show will always be inclined to come down on one side of the argument - that the national interest always outweighs the public interest.

Herald political correspondent John Armstrong has been covering politics at a national level for nearly 30 years.
Based in the Press Gallery at Parliament in Wellington, John has worked for the Herald since 1987.
John was named Best Columnist at the 2013 Canon Media Awards and was a previous winner of Qantas media awards as best political columnist.
Prior to joining the Herald, John worked at Parliament for the New Zealand Press Association. A graduate of Canterbury University's journalism school, John began his career in journalism in 1981 on the Christchurch Star. John has a Masters of Arts degree in political science from Canterbury.